PEOPLE OF MI V DENNIS DANELL WHITSETT
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 12, 2008
Plaintiff-Appellee,
v
Nos. 277294; 277295; 277296
Wayne Circuit Court
LC Nos. 06-009944-01;
06-009943-01; 06-009942-01
DENNIS DANELL WHITSETT,
Defendant-Appellant.
Before: Whitbeck, P.J., and O’Connell and Kelly, JJ.
PER CURIAM.
Defendant was charged in eight different cases stemming from allegations of criminal
sexual conduct involving eight different complainants. Three of those cases, the ones at issue
here, were consolidated below because of their similarity. In these consolidated appeals,
defendant appeals as of right from various convictions following a jury trial of consolidated
cases. In Docket No. 277294, defendant appeals his conviction for attempted kidnapping, MCL
750.349, for which he was sentenced, as a second offense habitual offender, MCL 769.10, to
three to five years’ imprisonment. In Docket No. 277295, defendant appeals his convictions for
two counts of first-degree criminal sexual conduct (CSC), MCL 750.520b(1)(c) and (f),
kidnapping, MCL 750.349, and second-degree CSC, MCL 750.520c(1)(c). Defendant was
sentenced as a second offense habitual offender, MCL 769.10, to 29 to 50 years’ imprisonment
for each first-degree CSC conviction, 29 to 50 years’ imprisonment for the kidnapping
conviction, and 10 to 15 years’ imprisonment for the second-degree CSC conviction. In Docket
No. 277296, defendant appeals his convictions for three counts of first-degree CSC, MCL
750.520b(1)(c) and (e), and kidnapping, MCL 750.349. Defendant was sentenced as a second
offense habitual offender, MCL 769.10, to 29 to 50 years’ imprisonment for each count of firstdegree CSC, and 29 to 50 years’ imprisonment for the kidnapping conviction. We affirm.
Defendant first argues that the trial court erred in consolidating three cases into one trial.
We disagree. We review de novo the question of whether the offenses are related, but a trial
court’s decision to join related offenses into one proceeding is reviewed for an abuse of
discretion. People v Girard, 269 Mich App 15, 17; 709 NW2d 229 (2005). “An abuse of
discretion occurs when the trial court chooses an outcome falling outside the permissible
principled range of outcomes.” People v Babcock, 469 Mich 247, 274; 666 NW2d 231 (2003).
Under MCR 6.120(B), “the court may join offenses charged in two or more informations
or indictments against a single defendant.” MCR 6.120(C) provides for severance for separate
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trials if the offenses “are not related as defined in subrule (B)(1).” Related offenses are those
based on: “a) the same conduct or transaction, or b) a series of connected acts, or c) a series of
acts constituting parts of a single scheme or plan.” MCR 6.120(B)(1). A series of acts
constituting parts of a single scheme or plan is established where there is “such a concurrence of
common factors that the various acts are naturally to be explained as caused by a general plan.”
People v Sabin (After Remand), 463 Mich 43, 63-65; 614 NW2d 888 (2000) (citation and
emphasis omitted). The various acts need not be part of a single continuing conception or plot.
Id.
At the pretrial hearing on the prosecution’s motion for joinder, the trial court analyzed the
above court rule and correctly concluded that the offenses constituting each case can be viewed
as a series of acts constituting parts of a single scheme or plan. In all three cases, defendant
approached a young female victim who was walking down the street in Detroit in the morning.
In TG’s1 case, defendant asked her out to breakfast, then, after she declined, put a knife to her
throat. In CD’s case, defendant pushed her to the ground and held a screwdriver to her forehead,
then asked her if she wanted to go out to eat. After defendant assaulted TG and CD (separate
incidents), he forced them into his car and drove them to a remote location. Defendant then
rubbed TG’s and CD’s vaginas, instructed them to “get it hard,” a directive for them to perform
oral sex on him, and forced them to have sexual intercourse with him. Thereafter, defendant
spoke to them as though their interactions were consensual (telling TG that he did not do
anything to her and telling CD that he would pick her up from school), and dropped them off at a
location of their choice. With respect to AP, defendant pulled up alongside her and asked her out
to breakfast. When AP declined, defendant got out of his car and attacked her, punching her in
the face several times. He then attempted to drag her into his car, but AP was able to get up and
run away. A rather reasonable inference could be made that defendant intended to do to AP what
he had done to his earlier victims. The similarities in all three cases are not only numerous, they
are also meaningful in that they evidence defendant’s plan, scheme or system for perpetrating
sexual assaults. Sabin, supra at 63-64.
Next, the court considered the additional factors in MCR 6.120(B)(2) and noted that the
prosecution’s motion for joinder was timely, the factor considering the drain on the parties’
resources would weigh in favor of joinder, the nature of the evidence was not unduly complex,
and, significantly, defendant was not unfairly prejudiced by joinder because, had the cases been
tried separately, the court would have nevertheless admitted evidence of the related offenses as
MRE 404(b) evidence to negate defendant’s claim of consent. Where evidence of one offense
would have been admissible to prove intent in a trial for another offense, a trial court’s decision
not to sever the two offenses is not an abuse of discretion. People v Duranseau, 221 Mich App
204, 208; 561 NW2d 111 (1997). The trial court’s analysis of the various factors enumerated in
MCR 6.120(B) was sound and its conclusion is supported by the facts. Accordingly, the decision
falls within the range of principled outcomes, and the trial court did not abuse its discretion in
granting the prosecution’s motion for joinder. Babcock, supra.
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In the interest of privacy, the victims’ initials are used.
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Next, defendant argues that the trial court erred in admitting irrelevant and unduly
prejudicial MRE 404(b) evidence. We disagree. We review a trial court’s decision to admit
other-acts evidence for an abuse of discretion, but preliminary decisions regarding admissibility
that involve questions of law are reviewed de novo. People v Dobek, 274 Mich App 58, 84-85;
732 NW2d 546 (2007). To be admissible under MRE 404(b), other acts evidence generally must
satisfy three requirements: (1) it must be offered for a proper purpose; (2) it must be relevant;
and (3) its probative value must not be substantially outweighed by its potential for unfair
prejudice. People v Knox, 469 Mich 502, 509; 674 NW2d 366 (2004). A proper purpose is one
other than establishing the defendant’s character to show his propensity to commit the offense.
People v VanderVliet, 444 Mich 52, 74; 508 NW2d 114 (1993), mod 445 Mich 1205 (1994).
Where the charged act and other acts are sufficiently similar to support an inference that they are
manifestations of a common plan, scheme, or system, evidence of the other acts is logically
relevant to show that the charged act occurred; the other acts need not be part of a single
continuing conception or plot. Sabin, supra at 63-64. Although general similarity alone does not
establish a plan, scheme or system, where the common features among the various acts are so
similar that it is natural to find they are caused by a general plan, the evidence is properly
admitted. Id. at 64-65.
The facts of the instant cases suggest that defendant had a plan, scheme or system for
perpetrating sexual assaults. As noted above, in each case, defendant would approach his young
female victim, who was walking alone in Detroit in the morning, ask them if they wanted to eat,
and force them into his vehicle with a weapon. Although one victim was able to escape at that
point, the other two victims reported nearly identical sexual assaults including the order of events
and defendant’s commands during the assault.
CY, the MRE 404(b) witness, testified that while walking to the bus stop in Detroit one
afternoon, defendant pulled up alongside her and asked for her phone number. CY provided it,
and the two arranged to go out to breakfast a few days later, at defendant’s request. When
defendant picked up CY, he indicated that he needed to stop by his house first before going out
to breakfast. Once at his house, he forced CY out of the car and pushed her into his house.
Defendant kept CY in his house against her will until eventually permitting her to leave.
Defendant later caught up with CY down the street and forced her into his car, brought her inside
his house once more and sexually assaulted her by taking off her shirt, pushing her onto a bed
and holding her down, attempting to put his hand down her pants, licking her face, and trying to
take off her pants. Defendant also slapped CY in the face as she cried. After letting her leave,
he once again followed her down the street and attempted to force her into his car.
That there were dissimilarities between CY’s incident and those involved in the
consolidated cases does not preclude a finding of a common scheme or plan. All of the incidents
have meaningfully similar features, including: (1) defendant approached the young women who
were walking alone in Detroit, (2) defendant asked all four women to go out to breakfast, (3)
defendant either forced or attempted to force all four women into his black Lexus, and (4)
defendant sexually assaulted the three victims that he was able to force into his car. These
features evidence a common scheme, involving the luring or forceful taking of young women
into his car to perpetrate violent sexual abuse.
In addition to showing a common scheme or plan, the evidence was also relevant in
rebutting defendant’s consent defense. Defendant argued that all of the sex was consensual and
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that “these weren’t abductions at all” but merely “business deals gone bad.” Because defendant
interjected consent as a defense, CY’s testimony was admissible to show that none of the victims
consented. “In a sexual assault prosecution, evidence of other acts is admissible under MRE
404(b) if it ‘tend[s] to show a plan or scheme to orchestrate the events surrounding the rape of
complainant so that she could not show nonconsent.’” People v Gibson, 219 Mich App 530,
533; 557 NW2d 141 (1996), quoting People v Oliphant, 399 Mich 472, 488; 250 NW2d 443
(1976). We find that the other acts evidence in this case shows such a scheme. Based on the
similarities, the probative value of the MRE 404(b) evidence was not substantially outweighed
by the possibility of unfair prejudice.
Moreover, to ensure that the jury did not improperly consider the MRE 404(b) evidence,
the trial court gave a limiting instruction cautioning the jury not to use the other acts evidence as
evidence of character or propensity, and jurors are presumed to follow their instructions. People
v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998). The other acts evidence was offered for a
proper purpose, was relevant, and the probative value of the testimony was not substantially
outweighed by its potential for unfair prejudice. Accordingly, the evidence was properly
admitted pursuant to MRE 404(b).
Next, defendant claims that the trial court erred in denying his motion for a mistrial. We
disagree. Because defendant’s sole basis for moving for a mistrial was his contention that the
trial court improperly admitted MRE 404(b) evidence, and we find that the trial court properly
admitted the evidence, we find no abuse of discretion in the trial court’s denial of the motion.
People v Bauder, 269 Mich App 174, 194; 712 NW2d 506 (2005). Additionally, the court’s
instruction directing the jury to disregard all references to the two MRE 404(b) witnesses
mentioned in the prosecution’s opening statement, but who did not ultimately testify, was
sufficient to dispel any potential for prejudice. See Graves, supra. Accordingly, defendant’s
mistrial argument is without merit.
Defendant also claims that there was insufficient evidence to support his nine
convictions. We disagree. Defendant was convicted of five counts of first-degree CSC (three
counts relating to TG, two counts relating to CD), one count of second-degree CSC (relating to
CD), two counts of kidnapping (relating to TG and CD), and one count of attempted kidnapping
(relating to AP). When reviewing a claim of insufficient evidence, we review the record de novo
and take the evidence in the light most favorable to the prosecutor to determine whether a
rational trier of fact could find that the essential elements of the crime were proven beyond a
reasonable doubt. People v Wilkens, 267 Mich App 728, 738; 705 NW2d 728 (2005).
Kidnapping occurs when a person knowingly restrains another person with the intent to
“[e]ngage in criminal sexual penetration or criminal sexual conduct with that person.” MCL
750.349(1)(c). Regarding attempted kidnapping, “an ‘attempt’ consists of (1) an attempt to
commit an offense prohibited by law, and (2) any overt act towards the commission of the
intended offense” which goes beyond mere preparation. People v Thousand, 465 Mich 149, 164;
631 NW2d 694 (2001).
To prove the crime of first-degree CSC under the theories asserted by the prosecutor in
this case, the prosecutor had to establish that: (1) the defendant committed sexual penetration
with another person; and (2) (a) the penetration occurred under circumstances involving the
commission of any other felony; (b) the defendant was armed with a weapon or any article used
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or fashioned in a manner to lead the victim to reasonably believe it to be a weapon; or (c) the
defendant caused personal injury to the victim and force or coercion is used to accomplish sexual
penetration. MCL 750.520b(1)(c), (e), and (f). “Sexual penetration” is defined as “sexual
intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any
part of a person’s body or of any object into the genital or anal openings of another person’s
body.” MCL 750.520a(p).
A person is guilty of CSC in the second degree, MCL 750.520c(1)(a), if the person
engages in sexual contact with another person and the contact occurs under circumstances
involving the commission of any other felony. MCL 750.520c(1)(c). “Sexual contact” includes
the intentional touching of the victim’s or actor’s intimate parts or the intentional touching of the
clothing covering the immediate area of the victim’s or actor’s intimate parts, if that intentional
touching can reasonably be construed as being for the purpose of sexual arousal or gratification,
done for a sexual purpose, or in a sexual manner for revenge, to inflict humiliation, or out of
anger. MCL 750.520a(o). The testimony of the victim alone can constitute sufficient evidence
to establish a defendant’s guilt. MCL 750.520h; People v Taylor, 185 Mich App 1, 8; 460
NW2d 582 (1990).
TG testified that defendant approached her when she was walking down the street and
asked her out to breakfast. After she declined, he put a knife to her throat and forced her into his
car. Defendant threatened that if she attempted to escape, he would shoot her in the back.
Defendant drove to a remote location, put his hands down TG’s pants and rubbed her vagina. He
then directed her to take off her pants, perform oral sex upon him, and have sexual intercourse
with him. TG testified that she complied out of fear for her life. The sperm sample from TG’s
rape kit matched defendant. Based on the foregoing, there was sufficient evidence from which a
rational jury could find that defendant kidnapped TG and committed three counts of first-degree
CSC upon her.
CD testified that, as she was walking down the street, defendant came up from behind her
and pushed her to the ground. He held a screwdriver to her forehead and threatened that if she
yelled, he would kill her. He forced her into his car and drove off. Eventually, defendant
parked, covered his hands in baby oil, and rubbed CD’s vagina. Defendant then forced her to
perform oral sex upon him and have intercourse with him. CD’s testimony was corroborated by
an onlooker, who testified that she witnessed CD being knocked to the ground and dragged away
by a man. Additionally, the rape kit performed on CD established that the sperm collected from
CD matched defendant. Consequently, a rational jury could readily find that defendant
committed kidnapping, two counts of first-degree CSC, and one count of second-degree CSC in
relation to CD.
AP testified that as she was walking to her cousin’s house in Detroit, defendant pulled up
alongside her and asked her out to breakfast. AP declined, and defendant got out of his car and
attacked her, punching her in the face several times. He then attempted to drag her into his car,
but AP was able to escape. AP’s treating physician confirmed that AP suffered injury to her eye
consistent with having been punched. Based on this testimony and the similarity to the other
victims, a rational jury could find that defendant intended to restrain AP in order to engage in
criminal sexual conduct and, thus, attempted to kidnap AP. In sum, reviewing the evidence in
the light most favorable to the prosecutor, there was ample evidence upon which a rational trier
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of fact could find that the essential elements of each of the nine charged crimes were proven
beyond a reasonable doubt. Wilkens, supra.
Finally, defendant argues that his seven sentences of 29 to 50 years’ imprisonment
constitute cruel and unusual punishment. Because defendant raises this issue for the first time on
appeal, his sentences are within the appropriate guidelines range, and he cannot demonstrate that
the trial court engaged in incorrect scoring or relied on inaccurate information to determine his
sentence, defendant is precluded from raising this issue on appeal. MCL 769.34(10); People v
Kimble, 470 Mich 305, 310-311; 684 NW2d 669 (2004). In any event, sentences falling within
the recommended guidelines range are presumptively proportionate, and proportionate sentences
do not constitute cruel and unusual punishment. People v Drohan, 264 Mich App 77, 92; 689
NW2d 750 (2004).
Affirmed.
/s/ William C. Whitbeck
/s/ Peter D. O’Connell
/s/ Kirsten Frank Kelly
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